Jennifer S. Martin (Albany Law School) has posted Remedial Pathways, Hybrid Transactions, and the Uniform Commercial Code (Wake Forest Journal of Business and Intellectual Property Law, forthcoming) on SSRN. Here is the abstract:
The 2022 Amendments to Article 2 of the Uniform Commercial Code provide enhanced recourse to its remedial structure by bringing at least the goods aspects of hybrid transactions, those involving goods and some other component, such as services, a lease, or other tangible or intangible property, within the scope of Article 2 to some degree in nearly all cases. In general, access to Article 2 remedies is limited by § 2-102’s limitation that there be a transaction in “goods,” things that are moveable at the time of identification to the contract. Prior to the 2022 Amendments, most courts historically applied a predominant purpose test to determine if the contract was one for goods and within the scope of Article 2, including its remedies provisions. This was an all or nothing proposition, either the transaction was within Article 2 or outside of its coverage. As such, hybrid transactions that involved goods, but were not predominately ones for the sale of goods, have been subject in most cases to common law contract remedies, which differ substantially from those of Article 2, and were completely excluded from access to Article 2 remedies. This Article seeks to provide a perspective on the specific inclusion of hybrid transactions under amended Article 2 by examining remedial outcomes under both the common law of contracts and Article 2, unamended and amended. It supports the approach of the amended Article 2 in providing access to Article 2’s remedial pathways irrespective of the structure of the sale of goods and provides a careful look at the application of party rights in the event of breach and attempts to guide those endeavoring to apply Article 2 remedies in the event of breach.
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